May 24, 2013

The title of this post is the headline of this notable new National Review commentary by David Keene, a former president of the National Rifle Association and the American Conservative Union, explaining why conservatives should support the Justice Safety Valve Act. Here are extended excerpts:

Like many conservatives, I supported many [mandatory minimum sentencing] laws when they were enacted and still believe that, in some narrow situations, mandatory minimums makes sense. But like other “one-size-fits-all” solutions to complicated problems, they should be reviewed in light of how they work in practice.

Fortunately, Senators Rand Paul (R., Ky.) and Patrick Leahy (D., Vt.) have crafted a smart and modest reform bill that will fine-tune these laws to eliminate many of the unforeseen and, frankly, unfair consequences of their application when the facts demand more flexibility. This bipartisan measure deserves conservative support.

The bill, the Justice Safety Valve Act of 2013, maintains existing federal mandatory-sentencing laws. It enables judges to depart from the minimums in certain cases, however, such as when the mandatory sentence is not necessary to protect public safety and seems blatantly unfair in light of the circumstances of the offense. In so doing, their proposal fulfills the primary objective of criminal-justice policy: protecting public safety, while promoting our constitutional separation of powers and saving taxpayers the expense of unnecessary and counterproductive incarceration.

Many people, conservatives as well as liberals, have come to believe that most mandatory-minimum-sentencing laws should be repealed. These laws give prosecutors nearly unchecked power to determine sentences, even though courts are in a better position to weigh important and relevant facts, such as an offender’s culpability and likelihood of reoffending.

Federal mandatory-minimum-sentencing laws are especially problematic. Not only do they transfer power from independent courts to a political executive, they also perpetuate the harmful trend of federalizing criminal activity that can be better prosecuted at the state level.

For years, conservatives have wisely argued that the only government programs, rules, and regulations we should abide are those that can withstand cost-benefit analysis. Mandatory minimum sentences, by definition, fail this basic test because they apply a one-size-fits-all sentence to low-level offenders, even though the punishments were designed for more serious criminals.

Economists who once wholeheartedly supported simple pro-prison policies now believe they have reached the point of diminishing returns. One is University of Chicago economist Steven D. Levitt, best known for the best-selling Freakonomics, which he co-authored with Stephen J. Dubner. Levitt recently told the New York Times, “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration,” and, today, “I think we should be shrinking the prison population by at least one-third.”

In other words, the initial crackdown was a good thing, but we are now suffering the effects of too much of that good thing.
If Levitt’s estimate is even close, right now we are wasting tens of billions of dollars locking people up without affecting the crime rate or enhancing public safety. In fact, spending too much on prisons skews state and federal budgetary priorities, taking funds away from things that are proven to drive crime even lower, such as increasing police presence in high-violence areas and providing drug-treatment services to addicts.

The Paul-Leahy bill will help restore needed balance to our anti-crime efforts. Repeat and violent criminals will continue to receive and serve lengthy prison sentences, but in cases involving lower-level offenders, judges will be given the flexibility to impose a shorter sentence when warranted.

The Paul-Leahy bill is a modest fix that will affect only 2 percent of all federal offenders, and even they won’t be spared going to prison. They will simply receive slightly shorter sentences that are more in line with their actual offenses.
The bill will improve public safety, save taxpayers billions of dollars, and restore our constitutional separation of powers at the federal level while strengthening federalism. This is a reform conservatives should embrace.

Comments

Everyone knows if they take this wishy washy approach, 90% of the MM will still be given....It takes God like attributes to get a reduction in the Federal sentenceing regime...

You could check out the sweetheart over in Iowa, Chief Judge Linda R. Reade...I think she would rather not have any guidelines at all.
Just give'em all the statutory Max and get it done... She is an AUSA dream come true.. Whatever you ask for, you get and then some at times.

AUSA pounds it and she paints it.....Iowa is a state of litle violence, concering the feds.. This is why you cannot have guidelines that are harsh and have no parole and good time days that amount to anything...Judges like her have cost taxpayors endless $$$$...She was a huge supporter for OWI being a crime of violence, if not THE first one to sentence...Apparently she never heard of Mens Rea and neither did the 8th circuit.

The 8th circuit got totally embaressed by the Gall case and rightly so..Increasing sentences dramatically when appealled...How dare you question us....It will take eons, but some day the neoanderthals will attrition themselves....

Judges can remain in office till they are 85 even 90... Why not can't mess anything up...Just ask Judge Jack Camp, the infamous cocaine user who had 2 loaded guns and a hooker in the front seat of his car when arrested.. But came out with 30 days jail and his atty license in tact, even though he was still presiding over cases of importance.. Its a miracle, no its just federal at work.. Really..

Close enough for government work, for sure..

Posted by: MidWest Guy | May 24, 2013 11:00:46 AM

MidWestGuy --

Don't you think justice would have been better served if there had been a mandatory minimum for Judge Camp, so he could not have benefitted from a sweetheart sentencing deal whipped up by the shrewd defense lawyer, compliant/foolish prosecutor, and self-satisfied judge?

Posted by: Bill Otis | May 24, 2013 1:45:06 PM

Bill, how would a mandatory minimum have helped? It was the prosecutors who were clearly striking a deal to cut the guy a break. Or am I missing something? The guidelines in the case were only 4-10 months.

Posted by: Thinkaboutit | May 24, 2013 4:16:32 PM

"neoanderthals"

Neanderthals were buried with flowers for an afterlife (Shanidar, Iraq).

Which people today are sufficiently sagacious to believe in an afterlife?

Posted by: Adamakis | May 24, 2013 4:35:40 PM

Thinkaboutit --

"Bill, how would a mandatory minimum have helped? It was the prosecutors who were clearly striking a deal to cut the guy a break."

One of the virtues of MM's is that they prevent prosecutors, who are sometimes awed by the rich, famous and powerful, from "cutting a deal" at sentencing. They can cut all they want, but the sentencing court is required to impose the MM floor no matter how bought off the prosecutor is.

Posted by: Bill Otis | May 24, 2013 5:15:39 PM

Bill, I get that, but as you know, if they are awed, that will manifest itself in the charging decision. Here, they caught the guy buying and could have busted him on a few different felony charges that carried stiffer penalties, but allowed him to plead to aiding and abetting possession. I don't care here because I wouldn't feel safer with a 67-year-old judge serving a 5-year mandatory minimum. Nor do I think he is likely to re-offend. Nor do I think drug traffickers are going to look at this case and think their activity won't be punished just because this old judge got a short sentence. I do wish, however, that rather than let him resign, they let Congress impeach him.

Posted by: Thinkaboutit | May 24, 2013 5:33:49 PM

Thinkaboutit --

Sentencing law can only reach what sentencing law can reach. The fact that it can't reach corrupt or stupid charging decisions is part of Constitutional life. As long as the Constitution vests the power to charge (or not charge) solely in the executive branch, the only answer to stupid or awe-struck charging decisions lies at the ballot box. I went there last November to try to trade in this particular executive branch, but got outvoted.

If there had been a mandatory minimum of, say, one year, Judge Camp -- if charged and convicted -- would have received no less than one year no matter how much the prosecutors swooned over him or were duped/intimidated/charmed by the defense lawyers. As I think we agree, this would have been a good thing.

The answer to a system that has abusable discretion is not to add yet more abusuable discretion. The answer is to do the opposite.

P.S. The principal purpose of sentencing is not to provide either general or specific deterrence, although those are worthwhile secondary purposes. The principal purpose is to provide proportionate punishment in the case at hand. Camp was a corrupt disgrace, and to my way of thinking deserved at least a year.

Posted by: Bill Otis | May 24, 2013 6:09:05 PM

Bill
Had he been charged correctly and given the enhancements, could be, 7-8 yrs maybe.
Drugs and a gun, position of power and the drug qty. on the bench while stoned, should get the high end of the range.

If like you said, he would of got 1 yr, it would have been good.

I don't like mm, too many get it so easy.

Bill you are a smart man and you articulate well on paper. The mm need only be reserved for the ultra violent or king pins. Way too many poor educated souls get hammered. Garden variety drug dealers get lite up as well. A lot of druggies who get arrested last and are at the bottom of the group, also get ate up. They have nothing to offer for substantial assistance. So they can do more time than the real king pins do.

Can you imagine how difficult prison is for mad off. Lived high, had money galore, power. But it was an illusion. The better life you have, the harder it would be.
Sitting in there with basically idiots, who don't care.

Posted by: Miwestguy | May 24, 2013 11:06:45 PM

"P.S. The principal purpose of sentencing is not to provide either general or specific deterrence, although those are worthwhile secondary purposes. The principal purpose is to provide proportionate punishment in the case at hand. Camp was a corrupt disgrace, and to my way of thinking deserved at least a year."

What is the proportionate punishment when there is no harm, no foul - twenty years?
This last statement says more about you than any platitude you could posit. Your religion is power and your God is Congress and the government!

Posted by: albeed | May 25, 2013 7:55:20 PM

Good Morning Or Afternoon.My Question Is I Have A Dear Friend Servings Over 12yrs In State Prison & Its An Non-Violent Case.When He Went Up For Parole This Oct.2013 They (Panel Of 3 Employees) Denied Him & Threw 3more Years;Saying He Ain't Learn Nothing.My Question Is Can He Fight That & What Procedures Can I Tell Him? Cause It Ridiculous For Them To Still Add On If He Already Did His Time.

Posted by: Jessica Bryant | Dec 29, 2013 4:30:23 PM

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